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Net libel appeal heard in court

Two Netizens return to court for the appeal of a small claims ruling that statements made on an email list constituted libel.

SAN FRANCISCO--In what is becoming an increasingly common front for legal defamation cases, an Internet flame war between two rivals spilled into a state courtroom here today.

The case, on appeal from Net libel suit raises free speech issues small claims court, challenges a $5,000 judgment against Stacy McCahan, who, during a heated exchange on an email discussion list, called another subscriber a liar and suggested that he was harassing her.

In February, Ken McCarthy won the judgment after convincing the small claims court judge that the posting--which was archived on an Internet search engine--harmed his reputation.

Since its early days, the Internet has been a passionate and freewheeling place where people engage in contentious public debates--also known as flame wars.

But as more and more people and commercial enterprises have flocked to the Net, these bitter disputes increasingly have become the subject of lawsuits. As early as 1991, courts have ruled that comments made in electronic discussion groups are no different than those made on radio or in newspapers and if defamatory, can subject the speaker to legal action.

But McCahan's attorney argued otherwise.

"The Internet is a context in which people expect very heated levels of discussion," Karl Olson told visiting San Francisco Superior Court Judge Winton McKibben. Olson added that the case is "extremely important" for the Internet because it could have a chilling effect on vigorous discussion if the judgment is not reversed.

The case stems from a series of back-and-forth discussions on an email list. After a San Francisco bicycle protest escalated into a small riot in late July, "Critical Mass" cycle enthusiasts aired their views about the event on the subscriber list.

McCarthy said he emailed McCahan, one of the more visible members of the bicycle group, and asked her for information about allegations of police misconduct during the riot. McCahan rebuffed his requests, and during a phone conversation, the two got into a heated argument.

On July 30, McCahan posted a message to the list and in the subject line wrote "Ken McCarthy is a liar--be warned." The message contained her account of the phone conversation and at the end, suggested McCarthy had harassed her.

McCarthy sued in small claims court in January and was awarded $5,000 the following month.

At points, today's hearing resembled more of an Internet free-for-all than a disciplined court proceeding. McCarthy, who represented himself, reminded more than one witness they were under oath. At another point, he produced a book of California statutes and asked a witness to read the legal definition of "harassment."

For his part, Olson argued that McCarthy was a self-promoting "muckraker" and that, contrary to numerous court decisions, statements made on the Internet are not subject to the same defamation analysis as those made in more traditional forums.

Online defamation suits are becoming increasingly common. A high-profile case against Net gossip columnist Matt Drudge and America Online is now working its way through the courts. White House adviser Sidney Blumenthal sued Drudge and AOL for $30 million after AOL ran a Drudge piece claiming Blumenthal was guilty of spousal abuse. Drudge later retracted the story.

Eric Goldman, an attorney specializing in cyberlaw at Cooley Godward, said that the facts and the law are clearly on McCarthy's side. "Defamation is defamation, no matter what its medium," said Goldman. "I don't put anything on [an email list] that I don't think about very carefully."